Uddin v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UDDIN v MINISTER FOR IMMIGRATION [2005] FMCA 841

MIGRATION – Visa – student visa.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.137J
Education Services for Overseas Students Act 2000 (Cth), s.20

Applicant: MOHAMMAD AHSAN UDDIN

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1313 of 2004

Judgment of: Scarlett FM

Hearing date: 3 June 2005

Date of Last Submission: 3 June 2005

Delivered at: Sydney

Delivered on: 7 June 2005

REPRESENTATION

Solicitor for the Applicant: Mr McNally

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the Respondent: Mr Kennett

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

DECLARATIONS

1. That the Applicant’s student visa was not cancelled by operation of law under section 137J of the Migration Act 1958.

2. That the Applicant was not an unlawful non-citizen at any stage.

ORDERS

1. That a writ of prohibition is to issue restraining the Respondent and her servants or agents from acting upon or giving effect to the purported automatic cancellation of the Applicant’s visa on 6 March 2005.

2. That a writ of certiorari is to issue removing the purported decision of the delegate of the Respondent on 6 April 2005 rejecting the Applicant’s application for a visa into this Court to be quashed.

3. That a writ of prohibition is to issue restraining the Respondent and her servants or agents from acting upon or giving effect to the decision of

   
   

   6 April 2005 rejecting the Applicant’s application for a visa.

4. That a writ of mandamus is to issue directing that Respondent to reconsider and redetermine the Applicant’s application for a subclass 497 visa according to law.

5. That the Respondent is to pay the Applicant’s costs of this application, fixed in the sum of $7500.00 professional costs and $1,076.00 disbursements, a total of $8,576.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1313 of 2005

MOHAMMAD AHSAN UDDIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of an automatic cancellation of the applicant's student visa on 6 March 2005 by the operation of s.137J of the Migration Act1958 and the subsequent decision of a delegate of the respondent Minister to reject the applicant's application for a subclass 497 visa.

2. The applicant claims that his student visa was not lawfully cancelled by the operation of s.137J and therefore his application for a subclass 497 visa was validly made.

3. The applicant seeks the following declarations and orders:

   1)a declaration that his student visa was not cancelled by operation of law under s.137J (2) of the Act;

   2)a declaration that he was not an unlawful non-citizen at any stage as a result of the purported automatic cancellation;

   3)the issue of a writ of prohibition restraining the respondent Minister and her servants or agents from acting upon or giving effect to the purported automatic cancellation of 6 March 2005;

   4)a writ of certiorari removing the purported rejection decision…